In the Name of the People? Plebiscites, Referendums and Same-Sex Marriage

Abstract

Putting legal questions of importance for the LGBT community to a decision by the people has become popular: Australia, California and Taiwan all considered this option where legalisation of same-sex marriages was concerned. Following the vote in favour of same-sex marriage in Ireland in 2015, this procedure may seem a promising way to achieve recognition of LGBT rights. But referendums also attract questions that deserve scrutiny. The perceived stability of the resulting decisions is not free of doubt: what a referendum may have settled at a particular time can be reversed by a people’s vote a few years later. Referendum campaigns can be divisive; referendums on same-sex marriages have certainly seen the employment of negative stereotypes relating to the LGBT community. Above all, the use of referendums to address human rights issues invites criticism that retains its validity beyond the issue of same-sex marriage. This chapter explores the advantages and challenges that attach to the use of instruments of direct democracy in particular with regard to same-sex marriages. It reflects on the motivating factors that underlie such referendums and the criticism they court and on viable alternatives to a determination of issues of this kind by popular vote.